10th Circuit issues temporary injunction pending appeal

By Joe Rubino For Hometown Weekly

Posted:
12/27/2012 09:44:12 AM MST

A federal appeals court on Wednesday, Dec. 26, temporarily blocked an elaborate land swap designed to supply a crucial right-of-way for the controversial Jefferson Parkway just days before the year-end deadline to complete the $10 million deal.

The temporary injunction issued by a panel of U.S. 10th Circuit Court of Appeals judges comes five days after a federal judge dismissed a lawsuit filed by Golden, Superior and environmental groups WildEarth Guardians and Rocky Mountain Wild that sought to block the deal on grounds including the lack of a thorough environmental assessment.

The land transfer involves the trading of a 617-acre parcel near the southwestern corner of Rocky Flats National Wildlife Refuge, known as Section 16, for a 300-foot-wide transportation right-of-way on the eastern edge of the refuge that runs parallel to Indiana Avenue. The right-of-way is viewed as a critical piece of the proposed Jefferson Parkway toll road, which proponents say will nearly complete a high-speed beltway around the Denver metro area.

The deal -- which involves multiple local governments, the Colorado State Land Board and the lawsuit's primary defendants, the U.S. Fish and Wildlife Service and the U.S. Department of the Interior -- already has been extended twice in 2012. Monday, Dec. 31, is viewed as a critical deadline for the deal, and if money does not begin changing hands by that time, some feel it could unravel.

On Wednesday, WildEarth Guardians and Rocky Mountain Wild -- which already had moved to appeal last week's dismissal -- filed an emergency motion to block the land deal pending the outcome of that appeal, and the federal appellate panel responded by granting an injunction.

"We temporarily enjoin the land exchange and preserve that status quo pending our consideration of the briefing on the Plaintiffs-Appellants' emergency motion," the ruling read in part.

Map of the proposed Jefferson Parkway.
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Picasa
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The panel set midnight Thursday as the deadline by which the lawsuit's federal defendants must file a response. Then, the plaintiffs will have until 4 p.m. Jan. 2 to file a response of their own.

"Our biggest concern was that there was series of transactions set up to take place before the end of year that would have made it impossible to undo," said Jeremy Nichols, WildEarth Guardians' climate and energy program director. "We're not saying that we are for sure going to win this lawsuit, but we do know if these transactions go forward, then we won't get a fair day in court -- and the 10th Circuit apparently agrees."

Bill Ray, interim director of the Jefferson Parkway Public Highway Authority, on Wednesday confirmed that the more than $10 million pledged toward the purchase of Section 16 is set aside in escrow accounts. If transactions do not take place by the end of the year, he said, there are instructions that the money be returned to its sources, which include the city of Boulder, Boulder County, Arvada, Jefferson County and other governmental entities.

Ray said that even if the money is returned, he believes the deal -- which he referred to as a "major open space acquisition" of which setting aside a transportation corridor for the parkway is only a small part -- still will take place eventually.

He noted that the Fish and Wildlife Service has been granted the authority to transfer ownership of parts of the Rocky Flats National Wildlife Refuge as it sees fit, and that Congress already has designated the eastern portion of the area as a transportation corridor.

The U.S. Department of Justice, which represents the federal defendants in the lawsuit, appears ready to file a response to the injunction Thursday, Ray said, and he feels the federal attorneys will point out the fact that the injunction could impact the deal's delicate timeframe.

"I continue to believe the appellate court may want to revisit the decision in light of information that the Department of Justice will present to them," Ray said.